&. 


^JS^OFPBW^ 


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C89Q2. 


Profestant  episcopal  Cburcb 
inHmerica/ 

eourt  of  Review  for  tbe  Second  juaicial  Depdrtment. 


In  the  Matter  of  the  Appeal 

of 

Rev.  Algernon  S.  Crapsey, 

from  the  Decision  of  the  Trial  Court  of  the 

Diocese  of  Western  New  York. 


Brief  for  Respondent 


John  Lord  O'Brian, 

Church  Advocate, 

Diocese  of  Western  New  York. 


BUFFALO 

C.  B.  RUSSELL  CO.,  PRINTERS, 
105  SENECA  STREET. 


Protestant  Episcopal  Church  in  the  United  States 

of  America. 
Court  of  Review  for  the  Second  Judicial  Department. 

In  tlie  Matter  of  the  Appeal 
—  of — 

Reverend  Algernon  S.  Crapsey, 
from  the  Decision  of  the  Trial  Court  of 
the  Diocese  of  Western  New  York. 

BRIEF   OF   RESPONDENT   FOR   ARGUMENT 
ON  APPEAL. 

Jurisdiction  of  ti^e  Court  or  Review 

The  function  of  the  Court  of  Review  is  not  to  rlc- 
terminc  questions  of  policy  or  expediency;  1jut  t(^  ad- 
minister the  law  of  the  Church.  (General  Canon  29, 
Section  5  and  18.)  At  present  the  powers  of  this  Court 
are  practically  limted  to  passing-  upon  technical  errors 
of  trial  or  procedure.  (General  Canon  29,  Section  5). 
The  Court  should  not  reverse  upon  anv  merelv  techni- 
cal error,  hut  it  should  reverse  if  suhstantial  injustice 
has  heen  done  the  Appellant  hy  anv  serious  misrulin.'^ 
or  error  in  the  decision  of  the  trial  Com  t.  That  is  to 
sav,   this   Court    should    not   reverse   unless   con\-inced 


tliat  corecting-  the  error  would  have  materially  altered 
the  decision  of  the  Trial  Court. 

The  embryonic  provisions  of  the  General  Canons 
relatino-  to  practice  in  the  future,  (Gen.  Can(jn  29, 
See's.  19,  20).  when  the  ultimate  Cou'/t  of  Appeal 
shall  have  been  established,  have  no  bearing  upon  the 
status  of  this  appeal.  There  is  now  no  canon  in  exist- 
ence giving-  the  defendant  a  right  of  appeal  to  such  a 
Court.  Idiere  is  now  no  ultimate  Court  of  Appeal 
in  existence  and,  aside  from  probability,  it  is  possible 
that  there  never  may  be  such  a  Court.  The  pnn'is'ou 
of  Article  TX  of  the  Constitution  is  permissive  not 
mandatorv,  and  its  language  is  noteworthy: 

"The  General  Convention,  in  like  manner.  ;//(7v 
establish  an  ultimate  Court  of  Appeal,  solely  for 
iJic  rc'Z'ic-a'  of  tJic  dctcrinination  of  any  Court  of 
Rc-i'icw  oil  questions  of  doctrine,  faith,  or  ivor- 
shi/y." 

If  the  ap]iellant  were  right  in  his  contention,  there 
would  l)e  no  end  to  this  case;  if  the  next  General  C(5n- 
\-ention  should  for  any  reason  postpone  the  creation 
of  the  ultimate  Court  of  Appeal,  then  the  decision  of 
this  case  would  necessarily  be  postponed.  Discipline 
in  the  Church  and  the  administration  of  justice  in  th'S 
and  other  cases  would  be  paralyzed. 


I.* 


The  Court  of  Review  has  no  power  to  pass  upon  the 

*rhe  Roman  numerals,  i-xi,  hereinafter  used  correppond 
with  the  points  specifically  stated  aud  numbered  in  the  app- 
ellant's notice  of  appeal. 


legality  of  the  Diocesan  Canons  which  prescibe     the 
way  in  which  a  Diocesan  Court  shall  be  chosen. 

Its  jurisdiction  is  limited  to  the  reviewing-  of  deci- 
sions when  they  have  been  made  by  Trial  Courts. 
(Gen.  Canon  29,  5  and  18).  No  General  Canon,  Con- 
stitutional Provision,  or  Statute  of  the  church  is  point- 
ed out  as  conflicting-  with  the  Canons  of  the  Diocese 
of  Western  New  York.  No  canon  has  conferred  up- 
on the  Court  of  Review  the  power  to  make  or  unmake 
the  Courts  or  the  laws  of  the  Diocese  of  Western  New 
York.  This  Diocese  obtains  its  power  to  create 
a  Diocesan  Court  directly  from  the  Constitution  of  the 
Church  in  America.     (Art.  IX.) 

A.     The  Trial  Court   was  not   illegally  organized. 

( 1 )  It  was  organized  in  strict  accordance  with  the 
provisions  of  the  Canons  of  the  Diocese  (Title  III, 
Canon  i,  Sections  I-VI,  W.  N.  Y).  The  right  of 
challenge  which  the  defendant  twice  exercised  was 
given  him  bv  these  Canons  and  the  vacancies  thus 
made  were  filled  in  accordance  with  the  Canons  of  the 
Diocese. 

(2)  The  power  of  this  Diocese  to  create  such  a 
Court  dates  from  the  creation  of  the  Diocese,  and  was 
originallv  conferred  upon  the  Church  in  this  State  by 
the  Constitution  of  1789.  Such  power  has  never  been 
restricted  and  the  present  Court  was  organized  in  ac- 
cordance with  the  present  Constitution.  ('Constitution 
1905,  .Article  IX). 

(3)  The  appellant  was  a  member  of  the  Diocese 
when  the  present  Ecclesiastical  Ordiuances  were  ad- 
opted (Vid.  Journal  W.  N.  Y..  1883)  ;  it  is  to  be  a^- 


snnied  that  he  was  a  member  of  the  Council  which  ad- 
opted them  without  objection :  by  virtue  of  these  Or- 
dinances, on  two  separate  occasions,  he  proceeded  to 
challenge  certain  members  of  the  Trial  Court  in  ac- 
cordance with  the  pri\'ileg-e  granted  liim  by  the  Or- 
dinances: he  made  no  objection  to  the  constitution 
or  jurisdiction  of  the  Court  until  some  time  after  he 
]iad  availed  himself  of  sjl^this  privilege. 

/;/  otlicr  words,  by  challenging  fico  of  the  dccfcd 
members  of  the  Court  his  attorneys  created  the  condi- 
tion to  ■iJiic]}  the\  no'ze  object. 

P>.      The  Court  was  not  unfairly  organized. 

(r)  The  sermons  preached  l)v  the  defendant  and 
afterwards  ])ublished,  anrl  of  which  C(^)mplaint  is  made 
in  the  Presentment  were  jM-eached  from  about  No- 
vember. 1904.  down  to  late  in  February.  1905.  (Case 
p.  61.  p.  78).  In  the  following  April,  1905.  a  pro- 
test of  ten  clergymen  bearing  date  April  19th,  was 
submitted  to  the  Standing  Committee.  This  protest 
asked  that  an  investigation  l>e  b.ad  of  the  utterances  of 
the  defendant  and  in  particular  of  one  of  the  above 
mentioned  sermons.  The  Standing  Committee  re- 
l^orted  these  facts  to  the  Council  of  the  Diocese  which 
met  May  18.  T905.  and  informed  the  Council  that  the 
Standing  Committee  had  advised  the  Bishop  to  ap- 
point a  Committee  of  Investigation  (Vid.  Appendix 
II,  Council  Proceedings,  1905,  W.  N.  Y..  pps.  69-70). 
The  matter  was  known  to  be  under  advisement  prior  to 
and  during  the  meeting  of  that  Council  and  when  the 
Trial  Court  was  electedi 

(2)  The  appellant  was  present  as  a  member  of 
that  Council  (  May.  T905)  when  a  new  Diocesan  Court 


was  elected  1)y  the  Council.  The  Journal  of  Council 
Proceedings  (1905,  p.  24)  shows  that  on  the  first  bal- 
lot to  elect  onl_v  four  clerg-ymen  received  a  majority. 
A  motion  was  then  put  and  carried  whicli  declared 
Rev.  C.  M.  Sills,  afterwards  challenged  by  the  defense, 
unanimously  elected  as  a  member  of  that  Court.  The 
Court  thus  represented  accurately  the  mind  of  th.c 
Diocese  as  expressed  in  its  Council. 

(3)  There  is  nothing  in  the  record  to  shcnv  that 
at  the  time  when  the  Standing  Committee  made  the 
nominations  to  the  Council,  as  they  were  required  to 
do  by  the  Canon  (W.  N.  Y.  Title  HI.  Canon  I,  Sec- 
tion II),  tliev  had  any  intention  of  themseh-es  present- 
ing Dr.  Crapsev  for  trial,  or  any  idea  that  he  would 
lie  presented  for  trial.  In  fact  the  reverse  is  true; 
iVom  the  Council  Proceedings  above  quoted,  it  ap- 
pears that  instead  of  proceeding  against  him,  thev  had 
referred  the  matter  to  the  Bishop.  It  is  clear,  there- 
fore, that  there  was  no  bias  or  prejudice  dis|)layed  by 
the  Standing  Committee  and  it  was  not  their  intention 
at  tliat  time  to  take  anv  part  in  anv  proceedings  against 
the  defendant. 

It  should  be  observed  that  the  a|)pe]]ant  nowhere 
directly  charges  bias  on  the  part  of  the  Standing  Com- 
mittee or  the  P)ishop.  His  arguments  are  all  directed 
against  the  svstem  of  choosing  the  Court.  ;:nd  the  s}'s- 
tcm  is  criticized  simply  because  it  might  i)ermit  the 
influence  of  prejudice — not  because  the  existence  of 
prejuflice  has  been  proven. 

(5)  ■  It  was  the  action  of- the  appellant's  attorneys 
in  challenging  two  members  of  the  Cotu't  which  ma;1e 
it  necessary  under  the  Diocesan  Canons  foi-  the  P.ishon 


6 

U)  nominate  two  new  members  to  sit  on  the  trial,  it 
tlie  appellant's  attorneys  had  not  made  these  cliallen: 
c^es,  a  majority  of  the  Court  would  have  been  men 
elected  by  the  Council  of  the  Diocese. 

(6)  There  is  no  evidence  in  the  record  or  any- 
where else  to  show  that  the  Standing  Committee  re- 
fused to  appoint  any  person  nominated  by  the  Bishop 
and  the  presumption  is,  therefore,  that  they  simply  en- 
dorsed liis  nominations.  (  \'id.  Title  III  C.  I.  Section 
3,  A\'.  N.  Y.)  He.  not  they,  really  made  the  appoint- 
ments. 

(7)  It  should  be  noted  rhat  the  Bishop  was  in  no 
wa}'  connected  v/ith  the  prosecution  eitliei"  theoretical- 
ly or  actually  and  that  he  had  no  part  in  ihe  hring-iu)^ 
of  these  charges. 

The  presumption  is  that  CN'erythinq-  was  honestly, 
conscientiouslv  and  properlv  done  and  tlierc  ts  in  the 
record  no  e\-idence  to  refute  this  presumption. 

(8)  The  whole  argun.ient  of  unfairness,  i.  e.,  that 
only  the  elected  members  coulrl  lie  impartial,  is  de- 
molished by  the  fact  that  the  onlv  Judge  who  dissented 
in  favor  of  the  defendant  was  the  Rev.  Dr.  Dunham, 
who  was  not  elected  bv  the  Cou.ncil  luit  nominated  1)v 
the  Bishop  and  a])pointed  bv  the  Standing  Commit- 
tee. 

(g)  C.  Finally,  the  whole  of  this  line  of  argu- 
ment in  behalf  of  the  appellant  fails  to  take  into  con- 
sideration the  theory  of  the  "Supremacy  of  the  Spirit- 
tiality"  which  underlies  the  entire  polity  of  the 
Church. — the  ideal  which  holds  that  the  standards  of 
the  Church  are  righteous  and  that  they  are  supreme. 
This  is  the  prcsumi)tion  that  the  sworn  jiriests  of  the 


Church  are  conscientious  men  and  that  they  faithfully 
and  honestly  discharo-c  all  duties  imposed  upon  them 
by  the  Church.  In  Engiand  this  principle  lias  been  so 
universally  recognized  that  the  Courts  oi  Common 
Lazv  have  held,  for  instance,  that  there  was  nothing 
improper  in  a  Bishop  bringing  suit  for  a  i)ension  be- 
fore his  own  Chancellor  who  had  been  appointed  to 
office  by  the  Bishop  (1853,  Ex  parte  Medwin  vs. 
Hurst,  I.  E.  &  B,  609,  cited  by  Phillimore). 

The  system  of  Courts  here  criticized  by  ap])ellant's 
Counsel  is  directly  analogous  to  the  English  system  of 
Ecclesiastical  Courts.  The  argumciifs  of  appcllavt 
fail  to  take  into  consideration  that  th.is  z^^holc  Ec- 
clesiastical system  had  its  origin  not  in  the  Common 
La-n'  -K'ith  its  jiiry  system  and  chaUenges,  but  in  the 
ancient  Civil  La^:^'  in  -ieh.ic/i  the  supremacy  of  the 
Courts  and  their  impartiality  w^^presumed.  In  Eng- 
land many  illustrations  are  found  of  these  statements. 
Eor  instance,  the  Church  Discipline  Act  of  T892,  (  Sec- 
tion ic,  Subd.  3.)  expressly  provides  that  a  Bishop 
may  act  as  Bishop  with  respect  to  proceedings  insti- 
tuted against  one  of  his  clergv  even  though  he  s^ands- 
in  the  relation  of  patron  to  the  accused. 

( Vid.  Phillimore  English  Ecc.  Law  II,  p.  T037.  et 
seq.)  The  Cliurch  Disciidine  Act  of  TS40,  (C.  <%.  3 
&  4  Vict.),  which  still  governs  the  discijdine  of  the 
clergv  in  cases  of  false  doctrine,  was  undoubtedly  the 
jjattern  used  in  drawing  the  Canons  for  Western  New 
"^'ork.  Under  that  Act  (Sections  6-1  t)  the  Bishop 
has  power  not  onlv  to  nppoint  a  Ci^mmittee  of  hn'esti- 
gation  and  to  institute  a  prosecution.  ]v\{  also  to  sit 
in   the  Diocesan   Court  on   the  Trinl, — lie  nlcMie  liav- 


iiio-  the  power  to  decide  the  case  and  pmn'^nnce  senl- 
ence.  In  that  Court  tlie  accused  lias  no  rij^lit  of  chal- 
leng-e. 

The  English  Ecclesiastical  Commissioners  of  1832 
recommended  the  restoration  of  the  Bishop's  personal 
jurisdiction.  In  1883  the  Ecclesiastical  Courts  Com- 
mission, composed  of  such  men  as  Archbishop  Tait, 
Bishop  Westcott.  Canon  Stubhs.  Sir  Roliert  T^hilli- 
more.  E.  A.  Ereeman,  Lord  Coleridge  and  others, 
specifically  recommended  an  increase  in  the  powers  i>f 
Bishops  and  a  strengthening  of  their  persfvnal  juris- 
diction ;  oue  of  their  recommendations  licin.g  that  in 
cases  of  heresy  and  breaches  of  ritual,  the  complaint 
should  l)e  set  down  before  a  Diocesan  Court  consist- 
ing of  the  Bishop  with  a  legal  anrl  a  theological  as- 
sessor,— the  assessors  to  advise  but  to  \rd\c  no  voice 
in  the  decision. 

(Vid.  Report  Ecc.  Courts  Commission  of  1883,  Vol. 
I,  and  es]).  A])])endix  I,  p.  32.) 

The  Ecclesiastical  Comn.iiss-on  of  1006,  in 
its  report  to  Parliament  just  published,  repeats  these 
recommendations  as  to  the  constitution  of  Diocesan 
Courts. 

(Vid.  Report  Royal  Con.i'n  on  Eccles.  Discipline, 
T906.  p.  C)H.) 


II. 


The  Trial  Court  did  not  err  in  proceeding  to  hear 
the  case. 

(i)      The   defendant   and   his   Counsel   had   ample 
time  for  preparation.    The  Church  having  ordered  him 


to  prepare  for  trial  he  was  bound  to  devote  himself 
to  that  task  unless  determined  not  to  prepare  at  all. 
He  was  given  all  of  the  time  to  which  he  was  entitled 
under  the  laws  of  the  Diocese.  The  minimum  time 
allowed  him  by  the  Canons  was  five  weeks.  (Ecc, 
Ord.,  W.  N.  Y.,  Sec.  VI.)  In  issuing  a  citation  the 
Bishop  gave  him  eight  weeks,  and  the  Court  at  its 
first  session  gave  an  additional  week,  making  nine 
wrecks  in  all.  The  Court  of  Review  cannot  find  the 
time  inadequate,  in  the  first  place,  for  the  reason  that 
the  law  thus  defined  what  was  adequate  time.  And  in 
the  second  place,  because  aside  from  the  law,  the  de- 
fendant actually  had  ample  time. 

(2)  It  was  the  duty  of  the  Trial  Court  to  look 
at  the  case  not  from  the  standpoint  of  any  one  individ- 
ual, l)ut  from  the  standpoint  of  the  Church  at  large 
and  justice  to  the  waiting  thousands  within  the  Churcli 
who  had  been  confused  and  amazed  at  the  reported 
teachings  of  the  defendant.  The  issues  had  been  mis- 
understood and  exploited  h\  the  ]>ress.  The  excite- 
ment and  controversv  could  n(^t  1)e  prolonged  with- 
out injustice  and  danger  to  the  Cliurch  at  large.  Tlie 
doctrines  of  tlie  Church  were  not  on  trial  and  the  de- 
fendant should  ha^■e  been  able  to  ex])lain  frankly  and 
readily  his  p(")sition  upon  matters  which  he  had  \'<^iccd 
more  than  a  year  pre^'ious. 

There  were  serious  technical  objections  to  the  Court 
adjourning  the  case  beyond  its  own  life. — the  possibil- 
ity of  changes  in  the  Court,  or  Standing  Committee, 
anrl  the  consequent  confusion  as  to  procedure.  The 
lircparati(Mi  of  the  prosecution  had  to  be  considerel  as 
vrcll  as  the  ugly  pre'.^eclent  of  OA-ertln'O'ving  a   jurlicial 


lO 

system  not  because  of  partiality  shown,  but  l^ecause  of 
the  fancied  possil)ility  that  partiahty  might  be  shown. 
( Vid.  Argument  of  Counsel  for  Standing  Committee, 
Case  pps.  20-24.)  A  reasonable  time  was  granted. 
Under  the  circumstances  the  only  defense  possible  was 
explanation,  and  no  explanation  or  defense  was  offered 
or  attempted.  The  events  of  the  trial  proved  the  wis- 
dom of  the  Trial  Court  in  proceeding  with  the  case. 

III. 

The  Court  decided  properly  in  declining  to  postpone 
the  hearing  until  after  the  next  Diocesan  Council 
should  be  held. 

(i)  The  appellant  in  his  notice  of  appeal  having 
gone  outside  the  record,  in  stating  that  the  Council 
did  actually  meet  thereafter,  it  Ijecomes  necessary  to 
state  that  when  the  Council  met  in  May.  1906,  after 
the  decision  of  the  Trial  Court  had  been  made  public, 
that  Council  re-elected  the  Standing  Committee  of 
eight  by  a  very  large  majority;  onlv  ten  nominations 
being  made  and  the  old  Committee  being  elected  by  an 
average  vote  of  about  seventy-five  as  against  twentv- 
five  votes  cast  for  the  two  new  nominees.  So  thor- 
oughly did  that  Council  approve  the  decision  of  the 
Trial  Court  that  it  made  no  change  in  the  canons  for 
Ecclesiastical  Courts ;  it  declined  to  exert  its  privilege 
of  electing  a  new  Court  and  it  re-elected  Rev.  Dr. 
Dunham,  the  dissenting  Judge,  at  the  request  and  upon 
the  nomination  of  the  Standing  Committee. 

(2)  Viewed  from  a  practical  standpoint  the  ap- 
pellants argument  is  fallacious, — "So  that  the  Court 


II 


would  not  ccjiisist  of  nieiiil^ers  appointed  by  the  prose- 
cution except  or  unless  as  said  Convention  should  so 
decide:"  in  other  words,  if  the  Council  should  decide 
to  elect  a  partial  and  biased  Court,  then  the  defendant 
mig-ht  have  a  fairer  trial. 

(3)  The  whole  argument  is  met  by  the  supposi- 
tion that  a  new  Council  might  re-elect  the  same  Court, 
and  then  if  the  same  members  should  be  challenged 
there  would  l)e  nothing  gained  by  the  delay.  As  the 
c\-ent  showed  this  was  the  mind  of  the  Council  when 
it  did  meet. 


IV. 


The  Trial  Court  had  the  right  to  pass  upon  all  the 
questions  involved  in  the  case. 

(  1  )  Fr(  )m  the  earliest  times  Diocesan  Courts  have 
had  jurisdiction  over  this  class  of  cases. 

(Vid.  See  Blunt's  Church  Law\  1882,  Ch.  III.  pps. 
26-27,  Lacey's  Hand  Book,  Appendix  to  Report  Ecc. 
Courts  Com.  1883,  etc.) 

Tb.e  Church  in  the  State  of  New  York  has 
liad  power  and  jurisdiction  over  these  cases 
ever  since  1789  and  this  Diocese  has  had 
that  power  ever  since  its  creation.  (Constitution  1789, 
Sec.  6,  Constitution  1905,  Article  IX.)  The  power 
has  never  been  abridged  or  limited.  Counsel  for  ap- 
pellant (\o  not  and  cannot  ])oint  out  any  statute  limit- 
ing this  i)ower.  No  general  Canon  could  limit  this 
jiower  of  the  Diocese,  because  the  power  has  been  con- 
ferred directly  by  the  Constitution.  Power  conferred 
by  an   Article  of  the   Constitution   cannot  b<e   limited 


12 


or  abridged  by  adopting  a  Canon,  although  a  Canon 
may  define  the  scope  of  the  Article  in  providing  pro- 
cedure, as  has  been  done  under  General  Canon  23. 

(3)  The  power  of  the  church  to  remedy  false 
teaching  is  an  inherent  power,  anciently  exercised  by 
the  Bishops  themselves  without  the  assistance  of 
Courts.  The  fact  that  a  limitation  has  been  placed 
upon  the  powers  of  the  Court  of  Review  in  dealing 
with  questions  of  doctrine  has  nothing  whatever  to  do 
witli  the  jurisdiction  of  this  Diocesan  Court.  This 
limitation  undoubtedly  was  placed  upon  the  Court  of 
Review  because  there  were  lavmen  on  that  Court,  an  1 
it  is  tlie  intention  of  the  Canon  to  prevent  that  C(nu't 
from  deciding  these  questions  until  an  ultimate  Court 
of  Ap]:)eal.  which  shall  consist  solelv  of  clergy,  shall 
be  provided  for  by  the  Church.  The  present  Diocesan 
Court  acquires  jurisdiction  under  Article  IX  of  the 
Constitution.  Sections  19  and  20  of  General  Canon 
29,  relating  to  future  practice  cannot  affect  a  power 
alreadv  conferred  bv  the  Constitution  of  the  Church. 


V. 


The  Trial  Court  ruled  correctly  in  excluding  opinion 
evidence  which  practically  dealt  with  the  guilt  or  inno- 
cence of  the  defendant. 

(Vid.  Argument  of  Counsel,  Case  pns.  91  et  seq. 
and  tlie  excellent  opinion  of  Judge  North,  Assessor, 
Case  pps.  106-107.)  The  Church  is  an  organization 
and  speaks  as  an  organization.  In  her  services  of 
Baptism,  Confirmation  and  Ordination,  she  has  pre- 
scribed her  conditions  of  membership,  and  thev  do  not 


13 

permit  of  dispute  or  alteration  by  individuals.  The 
only  function  of  an  expert  witness  is  to  explain  facts 
which  are  in  their  nature  so  technical  that  they  are 
unintelligil)le  to  a  Court  or  jury.  It  was  a  presump- 
tion of  law  that  the  clerical  Judges  knew  the  law  of 
the  Church.  The  opinions  which  might  have  been  of- 
fered in  this  case  would  have  dealt  simply  with  the 
justification  of  the  defendant  in  disobeying-  and  dis- 
regarding- the  laws  of  the  Church.  In  England  such 
opinions  cannot  be  offered  for  this  purpose;  the  judg- 
ment in  the  Gorham  case  having  decided  that  although 
opinions  might  be  offered  in  the  English  courts  for 
the  purpose  of  showing  the  liberty  allowed  in  Eng- 
land in  maintaining  certain  d(^ctrines,  thcv  could  not 
he  recei\'ed  as  evidence  of  the  doctrine  of  the  Church. 
( Gorham  vs.  Bishop  of  Exeter,  Broderick  &  Ereeman- 
tle.  Judgments  of  the  Privv  Council  pps.  64  et  seq.) 

The  English  decisions  are  at  most  merely  analogies 
rmd  not  precedents.  E^■en  as  analogies  they  mus'  h<^ 
cmsidered  vritli  reference  to  th.e  make-Uj5  of  the  Jutli- 
cial  Committee  of  the  Privy  C'umcil,  \vln'c]i  ?it  the 
present  time  is  a  body  ui)on  which  clergv  sit  as  a^^ses- 
sors  only,  having  no  voice  in  the  dcc'sions.  It  niust 
he  borne  in  n.iind  also  tint  the  English  Or;h'ni]  rea-'s 
differently  from  our  own.  It  requires  the  priest  to 
minister  the  doctrine  and  discipline  of  the  Church  "as 
this  realm  hath  received  the  same."  The  question  in 
the  English  Courts  .therefore,  is  not  only  what  the 
law  of  the  Church  requires,  but  what  is  the  practice 
of  flic  realm  in  enforcing  those  requirements.  The  re- 
sult of  permitting  the  introduction  of  sucli  testimony 
•  in   the   En.g]is]i   Courts   has   been   th.e   exhibition   of  n 


14 


vvuful  lack  and  failure  of  discipline.  Our  Diocesan 
Courts  and  Courts  of  Review,  on  the  other  hand,  are 
created  by  Canon  and  Constitution  in  a  free  Church. 
They  are  not  Courts  of  the  realm  bound  to  make  rea- 
sons of  State  a  part  of  Church  policy,  and  they  are  in 
no  way  bound  by  Eng-ish  precedent.  The  only  recent 
American  precedents  in  cases  of  this  cort  are  the 
MacOueary  and  the  Cheney  cases;  it  is  worthy -of  note 
tliat  the  decision  of  the  Trial  Court  now  under  con- 
sideration conforms  in  all  particulars  to  those  preced- 
ents. 

Finally,  and  apart  from  all  these  considerations  the 
contention  of  the  appellant  is  wilhimt  f(^rce  for  the 
reason  that  the  law  of  the  Diocese  provides  that  "the 
law  of  this  State  relating  to  evidence  shall  govern  the 
Court."  (Ordinances  Ecc.  Court.  W.  N.  Y.  Sec.  14.) 
Under  the  law  as  administered  in  New  York  State, 
such  opinion  evidence  must  be  excluded,  and  this  fact 
is  a  conclusive  answer  to  appellant's  contention. 

VI.  s 

The  testimony  of  Rev.  Mr.  Alexander  cannot  be 
disregarded,  disputed  or  dismissed  by  this  Court. 

(i)  Even  if  Mr.  Alexander  had  been  biased  or 
prejudiced,  there  is  no  dispute  as  to  the  facts  to  which 
he  testified  so  clearly  and  emphatically.  There  was 
no  conflict  of  evidence  upon  these  points  to  which  he 
testified.  There  was  no  motion  made  to  strike  out  the 
evidence ;  no  motion  made  to  have  the  Court  disregard 
it,  and  the  appellant's  attorneys  should  he  estopjDed 
from  raising  this  question  at  this  time.     No  witnesses 


15 

were  sworn  to  impeach  him;  no  attempt  was  made  to 
impeach  him.  The  cross-examination  did  not  in  any 
way  break  his  testimony ;  it  simply  strengthened  it  by 
bring-ing  out  the  fact  that  he  had  written  out  the  utter- 
ances immediately  following  the  service  at  which  he 
heard  them.  It  is  true  that  the  witness  showed  an  un- 
fortunate acerbity  of  temper  and  some  impatience 
under  what  he  apparently  deemed  inquisitorial  ques- 
tioning and  contempt  for  his  word  as  a  clergyman, 
but  these  facts  do  not  detract  from  the  apparent  hon- 
esty with  which  he  gave  his  evidence. 

(2)  It  is  wall  established  that  the  testimony  of  one 
witness,  even  if  uncorrolx>rated,  is  sufficient.  This  is 
true  of  the  law  as  administered  in  New  York  State 
and  which  controls  this  case ;  it  is  also  true  of  the  law 
as  administered  in  Ecclesiastical  cases. 

(Vid.  Record  on  trial  of  Bishop  Onderdonk.) 

(3)  The  evidence  of  Rev.  Mr.  Alexamler  was  not 
impugned  directly  or  indirectly:  it  was  not  disputed; 
no  witnesses  were  produced  to  deny  it  or  to  impeach 
his  ^•eracity.  The  Trial  Court  was  the  best  judge  of 
the  appearance  and  behavior  of  the  witnesses  and  of 
the  inferences  which  might  be  drawn  from  his  appear- 
ance and  testimonv.  They  found  that  the  witness 
spoke  the  truth.  The  Court  of  Review  has  no  power 
to  find  otherwise  as  to  the  facts.  It  is  respectfully  sub- 
mitted that  the  findings  of  the  Diocesan  Court  as  to 
facts,  where  there  is  undisputed  evidence  to  supi'x^rt 
those  facts,  must  be  conclusive  upon  this  Court. 

(4)  The  fact  that  no  witnesses  were  sworn  by  tb.e 
prosecution  to  corroborate  the  testimony  of  Mr.  .\lex- 
ander  relating  to  the  sermon  of  December  ^t,    tq'^-- 


i6 


was  the  result  of  the  statement  made  ]3y  Counsel  for 
the  defense,  who,  when  Counsellor  the  Standing  Com- 
mittee offered  to  call  corroborating  witnesses,  stated 
that  the  defense  would  offer  no  evidence  as  to  the  de- 
liver}^ of  the  sermon  in  question.  An  examination  of 
the  record  shows  that  this  statement  misled  the  Coun- 
sel for  the  Standing  Committee. 

(Vid.  Case,  p.  86,  remarks  of  Counsel.) 
(5)  As  a  matter  of  fact  the  testimriny  of  Rev. 
Mr.  Alexander  was  corroborated  bv  all  of  the  evidence 
taken  from  the  book,  which  tended  directlv  to  su]^]:)ort 
I'lis  testimonv.  The  defendant's  failure  to  take  the 
stand  to  contradict  or  impug'n  this  testimony  should 
be  taken  into  consideration  in  weighing  its  accuracy. 

VII,  VIII  AND  IX. 

The  Court  of  Review  cannot  pass  upon  the  points 
raised  in  these  paragraphs  of  appellant's  notice  of 
appeal  for  the  reason  that  it  cannot  "determine  any 
question  of  doctrine,  faith  or  worship." 

In  so  far  as  counsel  for  the  appellant  intimates  that 
the  conviction  does  not  accord  with  the  charges  or 
proof,  it  should  be  noted  that  the  defendant  was  not 
charged  with  saying  in  so  manv  words  that  he  dis- 
agreed with  the  Church  in  doctrine.  He  was  charged 
with  having  made  statements  which  iji  themselves 
actually  did  deny  and  impugn  doctrine  of  the  Church. 
The  claim  that  the  decision  did  not  conform  to  the 
charges  and  proof  is  a  technical  question  w^hich  can- 
not be  raised  now  for  the  first  time.  Tt  is  not  leased 
upon  any  exception  tnken  and  is  not  made  one  of  the 


17 


grounds  for  appeal  in  the  n(jtice  of  appeal,  and  there- 
fore cannot  he  now  taken  ad\'antage  of. 

However,  this  last  contention  is  without  merit.  The 
word  "advisedly"  as  used  in  Canon  .23  is  undouhtedly 
descended  from  the  same  usage  in  the  old  "Statute  of 
Elizaheth"  so-called.  (13  Eliz.  C.  12.  S.  2.)  What 
was  meant  hy  the  word  "advisedly"  was  considered 
years  ago  in  the  English  Court  of  Arches  hy  Dr.  Lush- 
ington  upon  the  trial  of  Ditcher  vs.  Denison  and  it 
w-as  there  held  that  "advisedly"  meant  not  "with  an 
avowed  purpose  of  infringing  the  law,"  hut  simply 
"deliberately,"  and  the  publication  of  the  sermons  hav- 
ing been  proved,  it  was  held  not  necessary  to  prove 
that  the  defendant  had  by  his  language  intentionally 
contravened  law'  or  doctrine. 

(Vid.  Citation  from  Opinion  sub  Title  in  B.  &  F. 
Ecc.  Judgments,  etc.,  p.  162.) 

See  also  Opinion  of  Judicial  Committee  of  the  Privy 
Council — Lord  Cranworth  writing — in  Keith  vs. 
Burder.  (B.  &  F.  etc.  212,  233,  234,  242).  The 
determination  was  the  same  in  this  case,  vix.,  that  "ad- 
visedlv"  meant  simply  "deliberately  spoken"  as  dis- 
tinguished from  a  casual  expression  dropped  unad- 
visedly. 

The  offense  charged  by  the  Presentment  was. 
(Charge  I), 

"That  the  said  Rev.  Algernon  Sidney  Crapsey 
has  violated  Canon  23  of  the  General  Canons  of 
the  Church,  and  in  particular  sub-secti(^n  b  of  sec- 
tion I  thereof."     (Case.  p.  4.) 

This  Canon  and  sub-section  provide  that  a  priest 
shall  be  liable  to  Presentment  and  Trial  for, 


i8 


"(b)      Holding  and  teaching  piil)licly  or  pri- 
vately,  and  advisedly,   and   doctrine  contrary  to 
that  held  by  this  Church." 
The  decision  (Case  pp.   130-131)  finds  tlia"  the  de- 
fendant did  deliver  the  sermons  and  did  ])rint  them 
in  book  form,  thus  clearly  establishing  that  he  acted  ad- 
visedly.    The  decision  then  further  finds  the  defendant 
guilty  of  the  Charges  set  forth  in  the  Presentment  in 
that  by  publishing  these  sermons  he  did  express  his 
l)e]ief  in  and  impugn  and  denv  certain  \'ita]  doctrines 
of  tlie  Christian  Church.      (Case  p.   132.)      The  con- 
tention  that   the   defendant   was   not   found   guilty   of 
adx'isedly   promulgating   these    doctrines    is   therefore 
with.out  any  support  in  fact. 

B.  Th.e  defendant  having  been  pro^•en  nnd  found 
guilty  under  Charge  I  as  above  set  forth,  it  followed 
that  he  must  have  been  guilty  as  found  under  Charge 
II  in  specification  I  thereof. 

The  presumption  is  that  in  taking  sex'eral  ordination 
vows  a  man  is  able  and  willing  to  accept  all  of  them. 
These  vows  taken  together  constitute  a  contract^ — a 
contract  of  a  permanent  character.  The  controlling 
vow  in  the  contract  is  the  one  providing  that  the  priest 
will  minister  the  discipline  and  doctrine,  "as  this 
Church  hath  received  the  same.  If  a  man  fails  to  0I3- 
serve  this  clause  of  the  contract,  the  contract  is  broken. 
If  the  contention  of  the  appellant  were  correct,  then 
any  priest  who,  ministering  to  the  people  leads  them 
in  the  recital  of  the  creed  and  in  the  same  service 
ridicules  it  or  characterizes  its  declarations  as  false,  is 
not  violating  anv  ordination  ^-ow.     Tt  should  be  ob- 


19 

served  that  the  dissenting-  Judge  in  effect  fonnd  the 
defendant  guilty  on  this  charge;  finding  that  the  de- 
fendant's error  consisted  in  defining  wliat  God  has 
not  been  pleased  to  reveal,  "and  interpreting  those 
doctrines  in  a  manner  not  generally  received  by  the 
Church."  (Case  p.  134.)  The  whole  argument  on  this 
subject  may  fairly  be  epitomized  l)y  asking  the  ques- 
tion whether  any  man  who  held  the  views  of  defendant 
could  now  be  ordained  to  the  ministry.  Tlie  answer 
to  that  question  disposes  of  this  whole  case. 


X. 


This  paragraph  in  the  notice  of  appeal  should  be 
stricken  out  as  vague  and  indefinite. 

The  general  Canon  is  clear,  direct  and  controlling 
upon  this  point.  It  provides  that  the  notice  of  appeal 
shall  briefly  set  forth  the  grounds  of  the  a]ipeal.  (Gen. 
Canon  29,  Sec.  6.)      The  intent  of  the  Canon  is  that 

The  recommendation  of  sentence  does  comply  with 
the  Constitutional  provision  (Article  IX)  requiring 
that  "a  sentence  of  suspension  shall  specify  on  what 
term.s  or  conditions  and  at  what  time  the  suspension 
shall  cease." 

To  get  at  the  intent  of  this  section  it  should  be  noted 
that  it  does  not  recjnire  a  length  of  time  or  a  period  oi" 


20 


time  to  be  fixed :  it  simply  implies  that  the  suspen- 
sion must  terminate  at  some  time  and  np':)n  some  con- 
ditions being  first  fulfilled  by  the  defendant.  Common 
sense  shows  that  the  sentence  of  the  Trial  Court  fixed 
both  the  time  and  conditions.  It  permits  the  appellant 
to  fulfill  the  conditions  as  early  as  he  desires  and  pro- 
vides that  the  sentence  is  to  cease  the  moment  that  he 
fulfills  the  conditions. 

xA..  It  was  competent  for  the  Trial  Court  to  recom- 
mend a  sentence  of  suspension  for  this  kind  of  an  of- 
fense, \'iz.,  the  preaching  of  false  doctrine. 

In  England,  suspension  is  used  only  in  cases  of 
minor  offenses  and  the  Eng-lish  authorities  must  be 
read  with  this  fact  in  mind.  But  neither  our  Consti- 
tution nor  our  General  Canons  prescribe  any  definite 
form  of  penalty  for  any  particular  offense. 

(Vid.  Constitution.  Article  IX;  Gen.  Can.  23,  Sees. 
I  &  2.) 

Under  these  provisions  a  man  convicted,  for  instance, 
of  immorality  or  of  habitual  neglect  of  public 
Vv'orship  may'be  deposed,  or  suspended,  or  admonished 
at  the  discretion  of  the  Court  and  Bishop,  and  the  law 
is  the  same  in  case  of  a  man  con\-icted  of  teaching 
false  doctrine.  It  is  clear,  therefore,  that  the  C(nn"t 
had  the  right  to  recommend  suspension  even  though 
the  offense  was  a  major  one. 

B.  It  was  competent  for  the  Trial  Court  to  impose 
the  condition  that  the  defendant  must  present  satis- 
factory proof  to  the  Bishop  ("Ecclesiastical  Author- 
ity") before  his  suspension  should  terminate. 


21 


Under  y\rticle  IX,  the  Court  had  the  right  to  pre- 
scrihe  the  conditions.  There  is  no  Canon  Hmiting  or 
defining-  the  conditions  which  such  a  Trial  Court  may 
impose.  There  is  no  evidence  in  the  record  upon 
which  the  Court  of  Review  can  base  a  finchng  that  the 
conchtion  specified  was  not  reasona1:)le.  in  the  Tem- 
poral Courts  sentences  do  not  provide  for  terms  and 
conditions:  they  simply  specify  for  punishment  <i 
period  of  time  in  months  or  years.  Any  argument, 
therefore,  founded  on  attempted  analogies  in  the  law 
of  the  Temporal  Courts  is  misleading  and  specious. 
The  Constitution  clearly  intends  that  terms  and  condi- 
tions as  well  as  time  shall  be  specified. 

Hoffman  (Ecc.  law,  page  434)  says  that  in  England 
the  settled  practice  in  suspension  for  haljitual  vicious- 
ness  is  to  require  a  certificate  as  to  good  behavior 
made  by  neighboring  clergy  to  be  filed  before  restora- 
tion ;  and  that  this  requirement  is  made  a  part  of  the 
sentence.  That  is  to  say,  a  man  is  suspended  for  a 
definite  period  of  time  and  in  addition  is  required,  at 
the  expiration  of  the  period  specified,  to  procure  and 
file  such  a  certificate  before  he  can  resume  liis  duties. 
There  are  a  number  of  such  instances.  Tn  the  case 
of  Saunders  vs.  Davies  (I  Add.,  291  ),  citcfl  in  Burn's 
Ecc.  Law,  II  p.  146a,  a  minister  was  suspended  for 
three  years,  the  suspension  not  to  be  remrived  until  n 
certificate  as  to  good  behavior  during  suspension 
should  be  procured  and  filed.  This  sentence  was  made 
bv  the  Court  of  Arches.  In  Watson  vs.  Thorpe,  a 
similar  punishment  was  inflicted,  the  Court  following 
a  former  precedent  "Dicks  vs.  Hudde<^ford"  (A'id. 
Burn's  II,  146  a.).     On  this  subject  Cri])]5S  in  his  Law 


22 


of  the  Church  (p.  663)  cites  the  case  of  Hodgson  vs. 
Oakley,  where  Sir  H.  J.  Fust,  sitting  in  the  Court  of 
Arches  revoked  a  Hcense  and  prohibited  the  defendant 
from  performing  nn'nisterial  functions  in  the  Province 
until  he  should  recant.  He  refers  also  to  the  case  of 
Bishop  of  Lincoln  vs.  Day,  I  Rob.  Ecc.  Rep.,  724.  In 
this  case  the  man  was  suspended  for  three  years  and 
further  until  he  should  exhibit  a  certificate,  etc. :  on 
In's  resuming  his  clerical  duties  at  the  expiration  of  the 
period  without  procuring  the  certificate  lie  was  de- 
clared in  contempt. 

Vid.  also  the  Opinion  of  Sir  J.  Nicholl  Saunders  vs. 
Da\'ies.  supra,  the  case  of  Trower  vs.  Hurst,  citel  bv 
Hoffman.  422n  and  the  case  of  Cave  Jones,  N.  Y.  1822 
suspended  until  he  should  retract  and  submit.  Also 
Hoffman  at  page  433  the  form  used  in  relaxing  the 
sentence  of  T.  Clowes. 

These  instances  cited  show  what  was  intended  bv 
"terms  and  conditions"  and  show  that  under  the  word- 
ing of  the  Constitution  (.^■rl.  TX)  it  was  competent 
for  the  Trial  Court  to  make  this  requirement.  There 
is  no  essential  difference  between  requiring  a  certificate 
and  requiring  satisfactory  proof;  nor  is  there  anv  in- 
justice or  unreasonableness  in  this  requirement.  Who 
better  than  a  Bishop  can  pass  upon  the  general  ques- 
tion of  a  priest's  competencv  to  minister? 

C.  The  sentence  recommended  does  specify  "a 
time"  within  the  meaning  of  the  Constitution. 

It  being  competent  for  the  Trial  Court  to  prescribe 
terms  and  conditions,  and  it  being  competent  for  that 
Court  to  suspend  the  defendant  for  the  offense  charged. 


23 

the  Court  has  specified  the  only  time  possihle  for  it 
to  specify.  Such  tcacliing  as  the  defendant  was 
charged  with  was  a  continuing  offense — not  a  single 
act  over  and  done  witli.  The  oljject  of  every  sentence 
must  l)e  to  punish  a  crime — and  also  to  prevent  its 
repetition.  If  a  man  convicted  of  teaching  false  doc- 
trine were  merely  suspended  for  ten  years,  such  a  sent- 
ence would  not  prevent  a  repetition  of  the  offense.  It 
was,  therefore,  necessary  as  well  as  competent  for  the 
Trial  Court  to  require  some  guaranty  as  to  future  con- 
duct. The  English  cases  above  cited  show  the  ration- 
ale of  this  kind  of  penalties. 

The  case  of  Bishop  Onderdonk  throws  a  flood  of 
light  upon  this  whole  question,  for  the  present  Con- 
stitutional Provision  on  suspension  was  undoubtedly 
framed  with  a  view  of  preventing  a  recurrence  of  what 
ha]ipened  in  that  case.  There  the  sentence  of  suspen- 
sion read  as  follows : 

"It  is  herebv  ordered  and  declared  that  the  sent- 
ence of  this  Court  upon  the  Respondent  is  suspen- 
sion from  the  office  of  a  Bishop  in  the  Church  of 
God,  and  from  all  the  functions  of  the  sacred  min- 
istry,— and  this  Court  do  herebv  solemnlv  pro- 
nounce and  declare  that  the  Right  Rev.  Benjamin 
Tredwell  Onderdonk  is  suspenderl  from  all  exer- 
cise of  his  Episcopal  and  ministerial  functions — 
and  do  order  that  the  notice  of  this  sentence  re- 
fiuired  by  said  Canon  be  communicated  bv  the 
Presiding  Bishop,  under  his  hand  and  seal  to  th? 
Ecclesiastical  authoritv  of  everv  Diocese  of  this 
Church." 
(Proceedings  (^n  Trial  B]i.  Onderdonk,  etc.,  p  330.) 


..>4 

In  other  words,  Bislioji  Onderdonk  was  suspentletl 
indefinitely.  There  were  no  terms  or  conditions  speci- 
fied which  he  might  observe  or  meet;  no 
period  of  time  specified  and  no  terms  giv^en  from  which 
a  time  could  be  determined  or  even  surmise  I.  In  the 
present  case  these  defects  are  fully  mef.  The  terms  and 
conditions  are  that  the  defendant  shall  present  satis- 
factory proof  of  conformity:  the  time  when  his  sus- 
pension is  to  cease  is  the  moment  that  h.e  shall  present 
such  proof.  If  the  appellant  had  been  sentenced  to  be 
suspended  for  three  years  and  then  required  to  present 
satisfactorv  proof  he  would  have  to  stand  ])unishmeni; 
for  three  years  before  he  could  ])resent  his  proof.  Tf 
the  appellant's  arguments  on  this  point  were  sound, 
then  a  Trial  Court,  whether  it  wished  to  or  not.  would 
be  obliged  to  suspend  a  man  for  a  term  of  years  in  ad- 
dition to  requiring  him  to  fulfill  certain  C(MiditionT. 
This  is  a  reductio  ad  absurdum.  The  Trial  Court  has 
been  more  merciful;  having  the  right  to  recjuire  him  to 
present  satisfactory  proo^  't  has  not  required  him 
to  stand  under  a  cloud  for  cen  years  or  twenty  years, 
1)ut  has  provided  that  his  suspension  shall  cease  at 
the  moment  when  satisfactory  proof  shall  be  furnished. 
The  intent  of  the  Constitutional  provision  is  simply 
that  a  maximum  time  shall  be  fixed.  The  Judges 
have  made  the  maximum  a  minimum,  and  have  enable.l 
the  defendant  to  lift  the  sentence  at  once.  They  ha\e 
merged  the  terms,  the  conditions  and  the  time  all  into 
one  phrase.  This  may  have  been  awkwardly  done, 
but  the  awkwardness,  if  any,  was  due  to  their  merciful 
attitude;  their  action  was  not  illegal  and  the  sentence 

is  not  void. 

H ^ 


The  objection  made  by  the  appellant  that  the  defend- 
ant could  not  be  convicted  for  publishing  his  book,  be- 
cause he  was  not  charged  with  so  doing  is  not  borne 
out  by  the  Presentment,  the  first  general  Charge  of 
which  charged  him  with  having  printed  the  sermons 
in  book  form  "and  that  said  book  was  published,  sold 
and  circulated  with  the  permission,  consent  and  au- 
thorization  of  the    said  presbyter."       (Case  page    3.) 


This  technical  objection  of  course  does  not  apply  to 
the  facts  connected  with  the  preaching  of  the  sermon 
of  December  31st,  1905,  upon  which  the  defendant  was 
found  guilty  by  the  decision. 

Prior  to  1905  the  law  of  the  Church  relating  to  the 
teaching  of  false  doctrines  was  the  same  in  sul^stance 
as  it  is  now,  except  that  it  was  set  out  in  Canon  No.  2 
of  the  old  Canons  and  it  is  now  set  out  with  some  verb- 
al changes  in  Canon  No.  23,  which  went  into  force. 
January  i,  1905.     There  was  also  a  slight  difference 
in  phraseology  relating  to  punishment.     Part  of  the 
sermons  complained  of,  and  which  were  set  out  in  the 
appellant's  book,  were  preached  prior  to  January   i, 
1905,  and  part  of  them  after  that  date.     (Case  page 
61,  page  78.)     The  book  was  published  iate  in  1905. 
The    objection  above    referred    to  was  made  by    Mr. 
Shepard  at  the  close  of  the  trial  whereupon  Counsel 
for  the  Standing  Committee,  in  accordance  with  the 
privilege  given  him  by  the  Ecclesiastical   Orrlinances 
(Section  14),  moved  to  amend  the  Presentment  "By 


inserting-  at  the  end  of  the  first  paragraph  of  Charge 
J,  and  at  the  end  of  the  lirst  paragraph  of  Charge  2, 
the  words  'and  also  the  same  law  of  the  Church  as  it 
existed  during  the  year  1904,  and  as  embodied  in. 
Canon  2,  Title  2  of  the  Digest  of  Canons'  ".  Tiie  Coun- 
sel at  that  time  stated  to  the  Court  that  the  three  Coun- 
sel for  the  Standing  Committee  were  satisfied  with 
the  legality  of  the  Presentment  as  it  then  stood,  but  in- 
asmuch as  no  injustice  could  be  done  the  defendant 
and  he  had  raised  the  point  they  would  amend  if  the 
Court  thought  it  necessary.  Apparently  the  Court 
found  it  unnecessary  to  consider  this  amendment,  for 
it  based  its  finding-s  upon  the  fact  of  the  publication 
of  the  book  and  the.  delivery  of  the  sermon  of  Decem- 
ber 31,  1905.  The  defendant  had  been  apprised  in 
the  Presentment  of  both  of  these  charges  and  cannot 
plead  surprise. 


In  conclusion  the  attention  of  the  Court  is  again 
called  to  the  rule  set  oirt  at  the  beginning  of  this  brief, 
namely,  that  justice  requires  an  affirmance  of  this  deci- 
sion unless  it  has  been  shown  that  by  serious  error  in- 
justice has  been   done  the  appellant,   and   unless  the 


Court  IS  convmced  that,sucl\  error  would  have  made  a 


;,si 
\ 

material  change  in  the  decision  of  the  Trial  Court. 

The  defendant  was  given  every  right  of  protection 
under  the  Canons ;  he  availed  himself  of  all  of  the 
privileges  so  granted  him.;  the  trial   was   fairlv   and 


I 


-/ 


honestly  coiulucled  by  men  against'  whom  no  charge 
of  bias  can  be  made;  the  Court  had  jurisdiction  of  the 
cause  and  of  the  person  of  the  defendant;  upon 
this  appeal  no  claim  is  made  of  any  save  technical 
errors ;  and  those  alleged  technical  errors  do  not  exist. 


11ie  Diocese  of  Western  New  York  asks  that  the 
Decision  be  affirmed. 

All  of  which  is  respectfully  submitted, 
JOHN  LORD  O'BRIAN, 

Church  Advocate, 
Diocese  of  Western  New  York. 


PHOTOMOUNT  • 
PAMPHLET  BINDER    \ 

Manufactured  by         | 
6AYLORD  BROS.  Inc.  i 
Syracuse,  N.  Y. 
Stocl<kon,  Catif.  , 


PRINTED  IN  U    S 


BX5960.C8902 

Protestant  Episcopal  church  in  America, 


